Writ Petition Kerala v IT Act Intermediaries Rules

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Writ Petition Kerala v IT Act Intermediaries Rules Powered By Docstoc
					Filed on: 01/03/2012

SUB:    PUBLIC    INTEREST  LITIGATION  --  CHALLENGING
CONSTITUTIONAL VALIDITY OF RULE 4 OF THE ‘INFORMATION
TECHNOLOGY (INTERMEDIARIES GUIDELINES) RULES, 2011 AND
RULES 8 AND 16 OF THE INFORMATION TECHNOLOGY (PROCEDURE
AND SAFEGUARD FOR BLOCKING FOR ACCESS OF INFORMATION BY
PUBLIC) RULES, 2009



 BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

                 W.P. (C) No.               OF 2012


        Shojan Jacob                                :: Petitioner

                                  VS.

    Union of India & Others                         :: Respondents




 MEMORANDUM OF WRIT PETITION FILED UNDER ARTICLE 226 OF
              THE CONSTITUTION OF INDIA



                       Court Fee – Rs. 100/- paid




                            SHOJAN JACOB
                          (PARTY IN PERSON)
   BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

                              W.P. (C) No.                           OF 2012



              Shojan Jacob                                                        :: Petitioner

                                                      VS.

         Union of India & Others                                                   :: Respondents



                                                    INDEX

.........................................................................................................

Sl.No.                                        Descriptions                                             Page
                  Nos.

..............................................................................................................

    1.                                        Synopsis                                                       A-C

    2.                    Memorandum of Writ Petition (C.)                                                   1-19


    3.                                        Affidavit                                                       20


    4. Exhibit P1: A true copy of the Gazette Notification                                                  21-24
       Dated 11/04/2011 of the ‘Information Technology
       (Intermediaries Guidelines) Rules, 2011


    5. Exhibit P2: A true copy of the ‘Information Technology                                               25-29
       (Procedure and Safeguard for Blocking for access of
       Information by public) Rules, 2009, Notification
       dated 27/10/2009


    6. Exhibit P3 (a): The true copy of the news report from                                                30-31
       New York Times citing 6 out of 7 websites readily
       took down content on the basis on the frivolous
       complaints sent by Center for Internet and Society (CIS)
      dated December 7, 2011

    7. Exhibit P3(b): The true copy of the news report published                                            32-34
       on Legally India, an Indian legal portal describing the CIS
        experiment dated December 7th, 2012
   8. Exhibit P4(a): The true copy of the news report           35-36
      published on Wall Street Journal describing
      the arbitrary blocking of the website
       www.cartoonsagainstcorruption.com
      dated January 4th, 2012

   9. Exhibit P4(b): The true copy of the news report           37-38
      published in Times of India describing the
      arbitrary blocking of the website
      www.cartoonsagainstcorruption.com
      dated January 7th, 2012

10. Exhibit P5: The true copy of the press release by            39
    the Press Information Bureau asking Internet
    Service Providers to only block specified
    content dated July 20, 2006 (Release ID: 18954)

11. Exhibit P6. The true copy of the reply received for the     40-46
    Application under Right to Information Act, 2005
    filed by the Centre for Internet and Society,
    Bangalore dated June 10, 2011, No: 14 (12)/2011-ESD

12. Exhibit.P.7 (a) The true copy of the news report            47-49
    Published on Rediff news portal Media Report
    showing India's international Internet gateways blocked
    access to http://www.dawn.com, the online news site
    of Pakistani daily Dawn dated July 5, 1999.

13. ExhibitP.7 (b) The true copy of the order from CERT-India     50
    to block yahoo group 'kynhun’ dated September 10, 2003

14. Exhibit P.7 (c) The true copy of the news report              51
    published in The Register showing that ISP’s
    blocked the entire yahoo groups and not the
    kynhun group alone which was order to be
    blocked datedparticular group alone dated
    24th September, 2003

15. ExhibitP.7 (d) The true copy of the news report             52-53
    dated May 26, 2004 published in Rediff
    portal that states the Indian ISPs
    blocked access to a web site,
    www.hinduunity.org on the basis of the
    order from the Mumbai Police Commissioner.

16. Exhibit P.7 (e) The true copy of the order                    54
    by the department of Telecommunication
    to block 17 webpages/websites dated
    July, 13th, 2006. ISPs instead blocked the
    entire domain resulting in blocking all
    blogs hosted by sites such as Blogspot, Typepad,
   Google and Geocities, No 870-1/04-LR (VOL-1)

17. Exhibit. P.7 (f) The true copy of the news published       55-56
    on July 19, 2006 in Rediff portal report
    showing that ISPs, in compliance with the
    order, blocked the entire domain instead
    of specific WebPages/websites resulting
    in blocking all blogs hosted by sites such as
    Blogspot, Typepad, Google and Geocities.

18. Exhibit.P.7 (g) The true copy of the report appeared       57-59
    on the Internet Broadband Forum on August , 13, 2008
    showing that ISPs across India blocked IRC Undernet
    without assigning any reasons.

19. Exhibit.P.7 (h) The true copy of the news report           60-61
    published in the Hindu on March 4, 2011
    showing several websites and blogs including
    Typepad, Mobango, Clickatell were blocked
    without citing any reason.

20. Exhibit.P.7 (i) The true copy of the news report           62-65
    published on Medianama, a news portal,
    on March 4, 2011 showing the screen shots
    of websites blocked stating that it was blocked
    on the orders of Department of telecommunication.

21. Exhibit. 8(a) A true copy of the representation sent       66-69
    by the petitioner on January, 30th, 2012 to
    the Department of Information Technology

22. Exhibit. P.8.(b) The true copy of the e-delivery receipt      70
    of the representation sent to Department of Information
    Technology, No EL 316330983IN, dated 30/1/12

23. Exhibit. 9.(a) A true copy of the screenshot image of         71
    the information displayed when websites/webpages
    are blocked in the kingdom of Saudi Arabia.

24. Exhibit.9.(b).A true copy of the screenshot image             72
    of the message displayed by Youtube, an intermediary
    in India, when it removed content on the basis of a
    copyright claim from a music company in India.


                 Dated this the 1st day of March, 2012




                               Shojan Jacob
                              Party in Person
  BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

                    W.P. (C) No.              OF 2012


         Shojan Jacob                                 :: Petitioner

                                    VS.

     Union of India & Others                           :: Respondents

                                SYNOPSIS

1. The petitioner herein is an Advocate practising in this Court and is a
post graduate in Cyber Laws and Information Security from the Indian
Institute of Information Technology (IIIT) Allahabad. He is also engaged in
research of cyber security laws. This petition is filed by him for protecting
the interest and the fundamental rights of the public at large comprising
all internet users. The petition is filed by the petitioner bonafide to get a
redress for a public grievance.

2. In this petition petitioner challenges Rule 4 of the ‘Information
Technology (Intermediaries Guidelines) Rules, 2011 and Rules 8 and 16 of
the Information Technology (Procedure and Safeguard for Blocking for
access of information by public) Rules, 2009 as arbitrary, unreasonable,
illegal and unconstitutional. Since the above said Rules are violative of the
fundamental right of the internet users to freedom of speech and
expression guaranteed under art 19 1(a) of the Constitution of India.

3. As per Rule 4 of the ‘Information Technology (Intermediaries Guidelines)
Rules, 2011, the Government has transferred the power to censor, block or
ban the websites and contents that appear in the Internet to the
intermediaries. The Intermediaries are private companies who are
functioning in the backend and who deliver content to the users of the
internet. The above said Rule is arbitrary, unreasonable and
unconstitutional and hence liable to be set aside for the following reasons:

   1) The intermediaries are private companies who have their own
      business interest to protect. The intermediaries cannot be expected
      to be guardians of free speech. They engage in blocking, censoring
      internet content arbitrarily and on the basis of any frivolous
      complaint. They do not have the responsibility to verify the
      genuineness of the complaint received. The blockings are arbitrary
      and not in conformity with the principles of natural justice like
      notice and fair hearing. The Rule requires the intermediary to work
      with the user concerned before censoring any content. But the user
      concerned is not given any notice or a chance for a hearing in the
      matter by the intermediaries. This is a gross violation of the
      fundamental right of free speech and expression guaranteed under
      Article 19 (1) a of the Constitution of India.

   2) The owner of the content or the user concerned has no opportunity
      for understanding the reasons for censoring his content. The orders
      by which the content is censored or blocked are never
      communicated to the concerned content owner/user by the
      intermediaries. Since the orders are never communicated, the
      aggrieved party cannot redress his grievance before any judicial
      forum. There is also no provision in the Rules to file an appeal. The
      right to judicial remedy is totally taken away by the drawbacks in
      the Rules and this is a clear infringement of the fundamental rights
      including the right to constitutional remedies.


4. Rule 8 of the Information Technology (Procedure and Safeguard for
Blocking for Access of Information by Public) Rules, 2009 is also
unreasonable, illegal and unconstitutional and liable to be set aside for the
reasons stated below:

   1) According to this Rule the government has empowered the
      ‘Designated officer’ of Computer Emergency Response Team (CERT-
      India) to block websites, blogs and content. Even though the above
      Rule mandates that a notice has to be given to the user concerned
      before blocking/banning/censoring any content, it is not complied
      with and the user concerned is not given a fair hearing.

   2) There is no mandate to issue notice to the ultimate affected
      user/owner of the content. The Rule places a discretion to issue
      notice to the affected user or the intermediary. The intermediary is
      not an interested party and would not have an objection to block any
      content. The intermediaries, being private companies, are
      established for profit making objectives and are not concerned about
      blocking content.


   3) The owner of the content or the user concerned has no opportunity
      for understanding the reasons for censoring his content. The orders
      by which the content is censored or blocked are never
      communicated to the concerned content owner/user by the
      designated officer. Since the orders are never communicated, the
      aggrieved party cannot redress his grievance before any judicial
      forum. There is also no provision in the Rules to file an appeal. The
      right to judicial remedy is totally taken away by the drawbacks in
      the Rules and this is a clear infringement of the fundamental rights
      including the right to constitutional remedies.

7. Rule 16 of the information technology (Procedure and Safeguard for
Blocking for Access of Information by Public) Rules, 2009 is also
unreasonable, illegal and unconstitutional and liable to be set aside for the
reasons stated below:

   1) The provision enables the designated officer not to serve a copy of
      the complaint or order so as to curtail the rights of the user
      concerned to resort to judicial remedies and is therefore arbitrary,
      unjust, illegal and unconstitutional. The Rule enables the designated
      to keep confidentiality and secretly engage in censoring the internet.

For the said reasons stated above, the petitioner seeks the following reliefs.
 to declare Rule 4 of the ‘information technology (Intermediaries
   Guidelines) Rules, 2011 and Rule 8 and Rule 16 of the information
   technology (procedure and safeguard for blocking for access of
   information by public) Rules, 2009 as arbitrary, unreasonable,
   illegal and unconstitutional and set aside the same.
 to issue guidelines to respondent 1 to the effect that before banning
   the content it shall be done with the prior notice to the owner of
   the content/user concerned in accordance with the principles of
   natural justice.
 to issue guidelines to respondent 1 to the effect that immediately
   after the blocking, banning or censoring the content a copy of the
   order stating reasons shall be communicated to the owner of the
   content/ user concerned so as to enable them to resort to judicial
   remedies.
 to direct the respondent 1 to instruct the Internet Service Providers
   (ISP) to develop the technical competence to block only the
   specified webpages/websites which have been directed by the
   Courts/ orders of the government.
 to direct the respondent 1 to take away the deciding power and
   censoring power from the intermediaries and escalate such issues
   to a government appointed body           like Computer Emergence
   Response Team (CERT-In) so as to ensure uniformity in the
   blockings.
 Pass such other orders, as this Honourable Court may deem, fit and
   proper in the circumstances of the case.

              Dated this the 1st day of March, 2012


                          Shojan Jacob
                        (Party In Person)
 BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

                      W.P. (C) NO.             OF 2012




PETITIONER:-

Shojan Jacob,
Shojan Villa,
Pampady P.O,
Kottayam,
Kerala – 686502


           VS.


RESPONDENTS:-

1. Union of India
  Represented by The Secretary
  Ministry of Communications & Information Technology
  Department of Information Technology
  Electronics Niketan, 6 CGO Complex,
  New Delhi - 110003

2. The State of Kerala
   Represented by the Secretary
   Department of Information Technology
   Government Secretariat
   Thiruvananthapuram,
   Kerala- 695001

WRIT PETITION FILED UNDER ARTICLE 226 OF THE CONSTITUTION
OF INDIA



  A. Address for service of notice on the Petitioner is Adv. Shojan Jacob,
     Shojan Villa, Pampady P.O, Kottayam, Kerala 686502

  B. Address for service of notice on the Respondents as that indicated
     above.

                        STATEMENT OF FACTS

     1. The Petitioner is an Advocate and a researcher in the area of
        cyber law. After his graduation from the National University of
        Advanced Legal Studies, (NUALS) in the year 2007, he has
     practised before this Honourable Court. After practising for a
     year, he went to do his post graduation in Cyber Laws and
     Information Security from the Indian Institute of Information
     Technology (IIIT), Allahabad. Later on to learn the implementation
     of cyber laws in the country he worked as a consultant in
     Bangalore advising organisations in Cyber laws and Information
     Security Governance, Risk Management and Compliance (GRC).
     He has experience advising clients on various Information
     security standards and frameworks. The petitioner also holds
     reputed   information   Security   Certifications   like   Certified
     Information Systems Auditor (CISA) and ISO 27001 Lead Auditor.


2.    The Petitioner after gaining sufficient exposure and experience
     in understanding the implementation of cyber laws in the country
     returned back to active practice now. He is also engaged in the
     research of cyber security laws. He has written several articles on
     various aspects of cyber law in both online and offline
     journals/forums. As an online publisher he wishes to draw the
     attention of this Honourable Court to the arbitrary blocking of
     blogs and websites. All the blockings taken place till date have
     not been in conformity with the principles of natural justice like
     notice and fair hearing. Even a copy of the order is not available
     to the citizens or the owner of the website/article. The
     owner/publisher remains unaware of the reasons for the block in
     such cases. The aggrieved party cannot approach the Court as no
     orders are delivered in this issue. Most of the time content is
     blocked in secrecy and when questioned by the public/aggrieved
     party, the authorities wash off their hands citing technical
     faults/failures. In the absence of specific directions in this
     regard, there is widespread online censorship imposed by the
     ‘intermediaries’ and the government empowered body, ‘CERT-
     India’.
     This petition is filed by him for protecting the interest and the
     fundamental rights of the public at large comprising all internet
   users. The petition is filed by the petitioner bonafide to get a
   redress for a public grievance.




3. The right to free speech and expression is explicitly recognised in
   all mediums including internet. The framers of the Indian
   Constitution has also unambiguously included this right under
   Article 19 (1) (a) and the Courts in India have zealously guarded
   this fundamental right of citizens from all attempts of censorship.
   The Right to speech and expression is now recognised as a multi-
   faceted right that includes the right to express, or disseminate
   information and ideas; the right to seek information and ideas;
   the right to receive information and ideas; and the right to impart
   information and ideas.


4. India is a party to the International Covenant on Civil and
   Political                 Rights and therefore bound to respect the
   right to freedom of expression guaranteed by Article 19 thereof,
   which states:

      a. Everyone shall have the right to hold opinions without
      interference.

      b. Everyone shall have the right to freedom of expression; this
      right shall include freedom to seek, receive and impart
      information and ideas of all kinds regardless of frontiers, either
      orally, in writing or in print, in form of art, or through any other
      media of his choice.



5. Article 19 of the Universal Declaration of Human Rights also
   recognises the same right. It states:


      “Everyone has the right to freedom of opinion and expression;
      this right includes freedom to hold opinions without interference
      and to seek, receive and impart information and ideas through
      any media and regardless of frontiers.”


6. Currently there are two separate Rules issued by the Central
   Government regarding the blocking of websites in the country. In
   the    year   2011     the   government    passed    the    ‘Information
   Technology      (Intermediaries    Guidelines)   Rules,    2011’   which
   empowers the ‘Intermediaries’ to remove, block and censor
   content / websites based on complaints. A true copy of these
   Rules is produced and marked as Exhibit P.1. The Information
   Technology (Procedure and Safeguard for Blocking for Access of
   Information by Public) Rules, 2009 empowers the Designated
   Officer appointed by the government appointed to remove
   content. A copy of the same is produced and marked as Exhibit
   P.2


7. After the induction of the 2011 Rules, there is an increasing trend
   among ‘intermediaries’ to arbitrarily block, ban and censor
   websites and content on the basis of any frivolous complaint
   received. To remove something from the Web, one needs to send a
   complaint to any of the string of ‘intermediaries’ that handle the
   content - the website owner, the web hosting company for the
   website, the telecom companies that deliver the content to your
   computer/mobile, the search engines, the web address (domain
   name) provider, the service used to share the link Eg: search
   Engines etc. The definition for “intermediary” is given in clause
   (w) of sub-section (1) of section 2 of the Information Technology
   Act,    2000.    The    2011      Intermediary   Rules     require   the
   intermediaries to work with the user concerned before blocking
   the website. However, it is observed that the website owner or the
   user who posted the article/comment is not given any notice or
   chance for a hearing in the matter. There is no communication of
   such blockings to the content owner and there is no public
   information available with regard to the websites blocked and the
   reasons for blocking.
8. The Centre for Internet and Society, a Bangalore based research
  group and an NGO demonstrated this lacunae in the law by
  sending several frivolous complaints to intermediaries to block
  websites or content. The yet to be published report says 6 in 7
  companies readily took down content and often removed more
  than what was asked for without raising any objection. The
  research    report   concludes    stating     that   the    “Rules   are
  procedurally flawed as they ignore all elements of natural justice.”
  A true copy of the news report which appeared on New York
  Times on this issue is produced and marked as Exhibit P.3.(a) A
  news report on the same aspect published by the Indian legal
  portal ‘Legally India’ is produced and marked as Exhibit P.3 (b)
  It is submitted that the Information Technology ( Intermediaries
  Guidelines ) Rules, 2011 does not require the intermediary to
  enquire about the genuineness of the complaint received. Hence,
  there is widespread misuse of these Rules.


9. Rule 4 of the Information Technology (Intermediaries Guidelines)
  Rules, 2011 is produced below. It states that:


      “The intermediary, on whose computer system the information
      is stored or hosted or published, upon obtaining knowledge by
      itself or been brought to actual knowledge by an affected person
      in writing or through email signed with electronic signature
      about any such information as mentioned in sub-rule (2) above,
      shall act within thirty six hours and where applicable, work
      with user or owner of such information to disable such
      information that is in contravention of sub-rule (2). Further the
      intermediary shall preserve such information and associated
      records for at least ninety days for investigation purposes”

10.   According   to   the   Information      Technology     (Intermediary
  Guidelines) Rules, 2011, the intermediaries have to act within 36
  hours of receiving a complaint. However, the word “act” is widely
  misunderstood to mean “block” by the intermediaries and the
  general public. In practice, it is observed that the intermediaries
  block content arbitrarily on receiving any complaint. There is no
  obligation on the part of the intermediary to check the
  genuineness of the complaint received. Today, the intermediary
  has to act (block) on any frivolous complaint received. While the
  foreign intermediaries may not cow down to such threats, it is
  observed that the local intermediaries have to block the content
  to please the complainant who might be a powerful and
  influential person in the society.


11.   The   Government     has   transferred   the   power   to   the
  ‘intermediaries’ to decide on the legality of the content posted
  online. The Intermediaries who are private companies have a
  business interest to protect. The intermediaries directly block any
  website/content due to the fear of being dragged to the Courts or
  due to the fear of threat to business. The intermediaries do not
  serve a copy of the blocking order citing reasons, nor does the
  intermediary give a chance for a fair hearing in the matter. There
  is no transparency in the process. The Rules are misused and the
  intermediaries extensively engage in censoring, blocking and
  banning content/websites without following the principles of
  natural justice.


12.   Section 69A of the Information Technology Act, 2000 imposes
  a heavy liability on the intermediary for not acting on a complaint
  received. Therefore, the intermediaries literally have no decision
  making power. There is a compulsion to take down the content or
  face legal consequences. If the intermediaries do not take down
  content on receiving a complaint, they have to face legal
  consequences for it. The intermediaries have to appear in Court
  in defense of their stand for not blocking the content. The
  intermediaries whose main purpose is to make profit immediately
  have to block the content to please the complainant.
13.   The government of India has left the ‘intermediaries’ to decide
  on the legality of content. The question of what is “Objectionable
  content”   differs   from    person     to   person.     The   US    based
  intermediaries operating in India have taken a very liberal stand
  on free speech. Some of the foreign intermediaries have clearly
  stated that “it is impossible for them to decide on the legality of
  content as viewpoint differs from person to person.” However, the
  intermediaries based out in India readily comply with each and
  every ‘take down’ request. By taking down contents they are only
  sponsoring internet censorship. It is submitted that local
  intermediaries do not have much say in the process. Currently
  these local intermediaries engage in blocking websites and
  content arbitrarily without any sense of responsibility and
  accountability. Hence, currently any person can take down any
  website/content      by   sending   a   frivolous      complaint    to   the
  intermediaries. When such complaints are raised by the High and
  mighty, the intermediaries readily oblige and remove content.
  This is a serious threat to democracy and free speech on the
  internet. The intermediaries, as private companies created for
  profit making cannot be expected to be protectors / guardians of
  free speech. They are not bound to safeguard and protect free
  speech / expression on the internet.


14.   On     December         26th,     2011      the       website        the
  www.cartoonsagainstcorruption.com was blocked on the basis of
  a complaint which was forwarded by the Mumbai crime branch
  police to the intermediary. The Indian intermediary ‘Big Rock’
  which was the domain name registrar and also the web hosting
  company blocked the website without providing an opportunity to
  the content holder for a hearing before taking down the content.
  The Wall Street Journal published the story on January 4th,
  2012. A true copy of this news report is produced and marked as
  Exhibit P 4 (a). The Times of India published the same story on
  January 7th, 2012. A copy of this news report is published and
  marked as Exhibit P.4 (b).
15.   It submitted that there is a serious violation of natural justice
  principles in these cases. Before deciding a disputed issue the
  natural justice principles require issuance of notice to the
  affected party, fair hearing in the matter, communication of
  order/judgement along with the reasons to the affected party.
  However, none of these principles are followed while blocking
  content in the Internet. The affected party has no information
  with regard to blocking of the content of the website. There is no
  communication of the ‘blocking order’ to the affected party
  against which an appeal/review can be preferred. The body to
  which the appeal/review is to be preferred is also missing in the
  Rules. Hence, there is a blatant violation of natural justice
  principles and the fundamental right of free speech in the
  Intermediary Rules.


16.   It is submitted that these Rules are more than ‘reasonable
  restrictions’ which are legally permissible under the Constitution.
  Any reasonable restriction when implemented and exercised in an
  arbitrary,   unfair,    unjust,   unlawful,    undemocratic      and
  unreasonable manner becomes unconstitutional. These Rules are
  vague, ambiguous and abstract with no proper definitions for the
  terms or illustrations of provisions like the Indian Penal Code
  (IPC) leaving room for very wide interpretation. These Rules in the
  present form are more than reasonable restrictions imposed on
  free speech and its exercise by incompetent individuals in an
  arbitrary and mechanical manner violates the fundamental rights
  of free speech guaranteed under the Indian Constitution. The
  Rules do not prove for any safeguard against abuse of power. The
  intermediaries are left to decide on the issue. The intermediary, a
  private entity cannot be the right body to decide on the
  fundamental rights of citizens.


17.   It is also submitted that none of these Rules require
  intermediaries to develop technical capabilities to block specific
  links at the sub domain level or particular extensions. Therefore,
  when orders are issued to block a particular URL the whole
  domain is blocked by the ISPs There is no compulsion on the
  intermediaries to develop technical competence to block specific
  links (URLs) when ordered by CERT-India or Courts. The
  intermediaries without such technical competence block the
  entire domain / website instead of the disputed content/page
  alone. The government of India issued orders to all ISPs to block
  only specific webpages/websites which have been directed and
  not block the entire website. A true copy of the press release by
  the government in this direction is produced and marked as
  Exhibit P.5. It is submitted that there is no liability for such
  arbitrary blocking by intermediaries in the Rules. As a result,
  intermediaries without any regard to free speech takes down the
  entire website. The fundamental right of free speech has no real
  value in the light of these Rules.


18.   Besides the intermediaries, the Government of India have
  empowered the Computer Response Emergency Team (CERT)-
  India to block websites/content on the basis of the complaint
  received. The Indian Computer Emergency Response Team
  (CERT-India) operates under the Department of Information
  Technology,    Ministry    of   Communications    &    Information
  Technology, Government of India. According to the Information
  Technology (Procedure and Safeguard for Blocking for Access of
  Information by Public) Rules, 2009, only the ‘Designated officer’
  appointed by the government shall issue orders for blocking any
  website/ content to any agency of government or intermediary. A
  copy of the said Rules is already produced and marked as Exhibit
  P2.


19.   The petitioner has tried to collect details of the websites
  blocked by the ‘Designated officer’ till date. However, no official
  information is available regarding the websites blocked or the
  reasons thereof. The CERT-India has not published any details of
  the website/content blocked. Rule 8 of the above mentioned 2009
  Rules require a notice to be issued to the user or the
  intermediary; however the officer does not follow this practice. No
  orders are available and no reasons are communicated by the
  designated officer. There is absolute secrecy in the procedure
  adopted for blocking and imposing censorship online. Several
  websites are blocked by the CERT-India/ Designated officer till
  now. However, there is no official information of it available in
  this regard. The Application filed under the Right to Information
  Act filed by the Centre for Internet and Society, Bangalore says 5
  orders were issued for blocking of different content prior to
  Information Technology Amendment Act, 2008. However, there
  are no details available in this regard. A true copy of the reply
  received for the Application under Right to Information Act, 2005
  filed by the Centre for Internet and Society, Bangalore is
  produced and marked as Exhibit P.6.


20.   Rule 8 does not mandate the service of notice to the affected
  user. The language used in the section creates a discretion to
  issue the notice to the ‘affected user’ or ‘the intermediary’. The
  ‘intermediary’, as a private company, has no objection towards
  any content being blocked. The intermediaries exist for a profit
  making objective and are not guardians of free speech. Hence, the
  mandate should be to reach/communicate with the ultimate
  affected user. Only the affected party knows the value, pain,
  struggle and effort involved in writing an article or creation of a
  content.


21.   The government has issued several orders for blocking of
  websites. The petitioner has collected a list of websites blocked by
  the government till date from the various news paper reports and
  is produced and marked as Exhibit P.7 Series which are as
  follows :-


  Ext.P.7 (a) A true copy of the news report published on Rediff
  news portal Media Report showing India's international Internet
gateways blocked access to http://www.dawn.com, the online
news site of Pakistani daily Dawn dated July 5, 1999


ExtP.7 (b) A true copy of the order from CERT-India to block
yahoo group 'Kynhun (http://groups.yahoo.com/group/kynhun)
dated September 10, 2003


ExtP.7 (c) A true copy of the news report dated 24th September,
2003 published in The Register showing that ISP’s blocked the
entire yahoo groups and not the kynhun group alone which was
ordered to be blocked.


ExtP.7 (d)     A true copy of the news report dated May 26, 2004
published in Rediff portal that states the Indian ISPs blocked
access to a web site, www.hinduunity.org on the basis of the
order from the Mumbai Police Commissioner. But one ISP, Sify
did not block the website stating that the order has not come
from the right authority.


Ext. P.7 (e) A true copy of the order by the department of
Telecommunication to block 17 webpages /websites dated July,
13th, 2006. ISPs instead blocked the entire domain resulting in
blocking all blogs hosted by sites such as Blogspot, Typepad,
Google and Geocities.


Ext. P.7 (f) A true copy of the news published on July 19, 2006
in Rediff portal report showing that ISPs, in compliance with the
order,   blocked   the      entire   domain   instead   of   specific
WebPages/websites resulting in blocking all blogs hosted by sites
such as Blogspot, Typepad, Google and Geocities.


Ext.P.7 (g) A true copy of the report appeared on the Internet
Broadband Forum on August , 13, 2008 showing that ISPs across
India blocked IRC Undernet without assigning any reasons.
           Ext.P.7 (h) A true copy of the news report published in the Hindu
           on March 4, 2011 showing several websites and blogs including
           Typepad, Mobango, Clickatell were blocked without citing any
           reason.


           Ext.7 (i) A true copy of the news report published on Medianama,
           a news portal, on March 4, 2011 showing the screen shots of
           websites blocked displaying the message “This site has been
           blocked as per request from Department of Telecom”


22.     It is submitted that Government / CERT-India has issued several
  orders for blocking of online content till date and Ext.P.7 Series would
  clearly go to show this.          However, there is no transparency and
  accountability in the process. No orders are available and no official
  communication has been made in this regard. CERT-India has not
  published even the basic details including the following:
              a) the list of websites blocked and the reason(s) for the
                 blocking
              b) the procedure followed in the decision making process,
              c) the norms set by it for the discharge of its functions.
              d) the relevant facts while formulating important policies or
                 announcing the decisions which affect public
              e) Provide reasons for its administrative or quasi-judicial
                 decisions to the affected persons.


 23.It is submitted that CERT-IN has not formulated an effective technical
      strategy or policy to identify and inform the affected party by issuing
      notice for appearance. The orders of CERT-IN are not communicated to
      the affected party, published and no procedures are laid down for an
      appeal or judicial review. The Orders for blocking are directly
      communicated to the Internet Service Providers (ISPS) who readily
      block the blog, website without informing the affected user or its
      subscribers creating chaos.
24. Rule 16 of the Information Technology (Procedure and Safeguards for
Blocking for Access of Information by Public) Rules, 2009 curtails the
rights of the user concerned to resort to judicial remedies. According to
Rule 16 all such orders and actions are to be kept confidential. Rule 16
specifically states that :


          Strict confidentiality shall be maintained regarding all the requests
          and complaints received and actions taken thereof.


25. CERT-India takes shelter under Rule 16 while censoring the internet.
Rule 16 even defeats the purpose of the Right to Information Act, 2005.
Rule 16 is therefore arbitrary, unjust, illegal and unconstitutional as it
enables CERT to take down content without regard to the principles of the
natural justice. The presence of Rule 16 in the statute book enables CERT-
India to act in secrecy and censor internet content.


26. It is also respectfully submitted that a blanket ban on the website/
article is not the solution. It amounts to censorship. A website should be
blocked just because of a disputed article. A great article/content should
not be blocked just because of a rogue comment posted beneath it.
Western nations like US and UK recognise free speech and condemn
censorship online. These nations have adopted the legal and technical
measures to notify affected user before taking down the content. Hence,
the bodies responsible for adjudicating on the disputed content should
adopt similar measures to identity the individual and provide for a hearing
in the matter before removing/blocking the content.


27. It has been laid down clearly by the Indian Courts that Art. 21 has a
multidimensional interpretation. Any arbitrary, whimsical and fanciful act
on the part of any state depriving the life or personal liberty would be
against Article 21 of the Indian Constitution. The citizens of India remain
totally ignorant and unaware of the censorship imposed in the internet.
This is unacceptable in a democratic nation. In the case of State of
Rajasthan v. Raj Narain (AIR 1975 SC 865) the Supreme Court has held
that:
              “In a Government of responsibility like ours, where all the
              agents of the public must be responsible for their conduct,
              there can be but few secrets. The people of this country have a
              right to know every public Act, everything that is done is a
              public way, by their public functionaries. They are entitled to
              know the particulars of every public transaction in all its
              bearing. The right to know, which is derived from the freedom
              of speech, though not absolute, is a factor which should make
              one wary, when secrecy is claimed for transactions which can,
              at any rate, have no repercussion on public security, see New
              York Times Co. V. United States ((1971) 29 Law Ed. 822= 403
              U.S. 713).   To cover with veil of secrecy, the common routine
              business, is not in the interest of the public. Such secrecy can
              seldom be legitimately desired. It is generally desired for the
              purpose of parties and politics or personal self interest or
              bureaucratic routine. The responsibility of officials to explain
              and justify their acts is the chief safeguard against oppression
              and corruption.”


28.The petitioner has made a detailed representation to the Department of
   Information Technology, Ministry of Communications & Information
   Technology, Government of India on 31/01/2012. However, nothing was
   heard from the Ministry on this aspect. A true copy of the representation
   dated 30/01/2012 sent by the petitioner to the department of Information
   Technology is produced and marked as Exhibit P. 8 (a) and the true copy
   of the e-delivery receipt received from the Post office in this regard is
   produced and marked as Exhibit. P.8.(b)


29.Lastly, the petitioner wishes to invite the Honourable Courts attention to
   practise of internet censorship in countries like the Kingdom of Saudi
   Arabia and United Arab Emirates (UAE). The UAE and Saudi Arabian
   government despite being an absolute monarchy maintains a clear
   transparency policy while censoring internet. The Communications and
   Information technology Commission (CITC) in Saudi Arabia which is
   responsible for filtering the illegal and harmful content and regulating the
   services that are provided by ISPs (Internet Services Providers) while
   blocking content also displays information of the block and also has a
   service on its website that allows Internet users to request to block or
   unblock any websites. Whenever a website/webpage is blocked, the
   information of blocking is showing to the user. The aggrieved user is also
   given an opportunity to take up the matter with authorities. A true copy
   of the screen shot of such displayed information is produced and marked
   as Exhibit. 9.(a) The petitioner also submits before this Honourable
   Court a screenshot image of the message displayed by Youtube, an
   intermediary, when it removed content on the basis of a copyright claim
   from a music company in India. A true copy of the screenshot is
   produced and marked as Exhibit 9.(b).


30.The petitioner wishes to submit that the process of censoring content in
   the internet needs to be streamlined by ensuring transparency and
   maintaining consistency and uniformity in the standards in blocking
   content. The blocking of content has to be in compliance to the principles
   of natural justice and with provisions providing for appeal and judicial
   review. The right to know, receive and impart information has been
   recognised within the right to freedom of speech and expression. One
   sided information, disinformation, misinformation and non information,
   all equally create an uninformed citizenry which makes democracy a
   farce.



 As the petitioner has no other efficacious alternative remedy other than to
 approach this Honourable Court on the following among other:


                                       GROUNDS


       A. The    Rule   4   of   The   Information   Technology   (Intermediary
            Guidelines) Rules, 2011 is arbitrary, unreasonable, illegal and
            unconstitutional and violative of art 19(1)a of the Constitution of
            India.
B. Rule 8 and 16 of the Information Technology (Procedure and
   Safeguard for Blocking for Access of Information by Public) Rules,
   2009 are also violative of art 19(1)a of the Constitution of India.


C. The Information Technology (Intermediary Guidelines) Rules,
   2011 provides unbridled freedom to the intermediaries to censor,
   block, and ban online content. There is no accountability and
   transparency in the process of blocking, banning and censoring
   content on the internet in India.


D. There is no provision for judicial review in the Rules in as much
   as the orders by which the concerned website and webpages are
   blocked are never communicated to the aggrieved party so as to
   enable him to redress his grievances by resorting to judicial
   remedies. The right to constitutional remedies are also violated
   due to the drawbacks in the impugned Rules.


E. The Government body CERT-India responsible for blocking is
   operating in a veil of secrecy. There is no transparency in the
   blockings. No official details are published about the block, ban
   and censored websites till date. There are no procedures, orders
   published and no reasons available for blockings till date.


F. Principles of natural justice like notice, fair hearing, order,
   reasons for the block, provisions for appeal etc are missing in the
   practise   and   procedure.    This   is   a   blatant   violation    of
   Fundamental rights and the law is void under Art. 13 of the
   Indian Constitution.


G. Being private business entities, intermediaries are profit driven
   and have no responsibility to ensure free speech and Internet
   freedom. There is no accountability on the intermediaries to
   communicate to the affected party about any order received prior
   to blocking the content.
H. Intermediaries, being private entities cannot be left to sit on
   judgement on any matter disputed matter. The disputed matter is
   to be addressed at a government appointed forum like CERT-
   India to set a uniform pattern in addressing such issues.
   Intermediaries have varying policies and yardsticks.


I. Section 69A (3) of the Information Technology Act, 2000 imposes
   punishment      on     intermediaries        for   not     acting    on
   orders/complaints. The Section makes it mandatory for the
   Intermediary to act on any frivolous complaint and Rule 4 of the
   Intermediary   Rules    aggravates     the     situation   forcing   the
   intermediary to block, ban or censoring any content on a
   frivolous complaint. The Rules conflict with the fundamental
   rights of free speech and expression.




J. There is no responsibility on the intermediary to investigate into
   the genuineness of the complaint or to inform the content holder
   regarding the block or ban. This is a violation of natural justice
   principles. The content owner should get a copy of the order of
   block and the reasons for the block.


K. Government of India should publish all orders issued for blocking
   content on the website of CERT-India. Intermediaries should get
   approval from CERT-India prior to blocking content and a
   compiled list of orders issued citing reasons should be available
   on the CERT-India website.


L. Intermediaries should develop technical competence to block
   specific disputed links, Uniform Resource Locators (URLs)
   without blocking the entire Domain name. On the orders of Court
   or CERT-India, it is a commonly seen that ISP’s block the entire
   domain name due to lack of technical competence.
       M. If a website is blocked, the information of the block has to
          displayed like a banner as seen is countries like Saudi Arabia and
          United Arab Emirates. The order/reason of the block can be
          provided as a link to the affected party/ public.


For these and other grounds to be urged at the time of hearing, it is most
humbly prayed that this Honourable Court may be pleased :


                             RELIEFS/PRAYERS


(a)    to declare that Rule 4 of the ‘information technology (Intermediaries
       Guidelines) Rules, 2011 and Rule 8 and Rule 16 of the information
       technology (procedure and safeguard for blocking for access of
       information by public) Rules, 2009 as arbitrary, unreasonable,
       illegal and unconstitutional.


(b)    to issue a writ of certiorari or other appropriate writ, order or
       direction to set aside Rule 4 of the ‘information technology
       (Intermediaries Guidelines) rules, 2011 and Rule 8 and Rule 16 of
       the information technology (procedure and safeguard for blocking
       for access of information by public) Rules, 2009 as being illegal and
       unconstitutional.


(c)   to direct or order appropriate guidelines to respondent 1 to the effect
       that before banning the content that it shall be done with the prior
       notice to the owner of the content/user concerned in accordance
       with the principles of natural justice.


(d) to direct or order appropriate guidelines to the respondent 1 to the
      effect that immediately after the blocking, banning or censoring the
      content a copy of the order stating reasons shall be communicated to
      the owner of the content/ user concerned so as to enable them to
      resort to judicial remedies.
(e)     to issue a writ of mandamus or any other appropriate writ , order or
       direction to respondent 1 to instruct the Internet Service Providers
       (ISP) to develop the technical competence to block only the specified
       webpages/websites which have been directed by the Courts/ orders of
       the government.


(f) to issue a writ of mandamus or any other appropriate writ , order or
      direction to respondent 1 to take away the deciding/censoring power
      from the intermediaries and escalate such issues to a government
      appointed body like Computer Emergence Response Team (CERT-In) so
      as to ensure uniformity in the blockings.




(g) Pass such other orders, as this Honourable Court may deem, fit and
         proper in the circumstances of the case.




                               INTERIM RELIEFS


      For the reasons stated in the writ petition and the accompanying
affidavit it is most humbly prayed that this Hon’ble Court may be
pleased to     issue a writ of Certiorari or any other appropriate writ, order
or     direction   declaring   Rule   4   of   the   ‘Information   Technology
(Intermediaries Guidelines) Rules, 2011 and Rule 8 and Rule 16 of the
Information Technology (Procedure and Safeguard for Blocking for
Access of information by Public) Rules, 2009 as arbitrary, unreasonable,
illegal & unconstitutional and set aside the same, pending the disposal
of this writ petition.


                         Hence this writ petition (civil)




                     Dated this the 1st day of March, 2012
                       SHOJAN JACOB
                      (Petitioner- Party in Person)
  BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

                    W.P. (C) No.             OF     2012


     SHOJAN JACOB                                        :: PETITIONER

                                     VS.

     UNION OF INDIA & OTHERS                         :: RESPONDENTS


                                 AFFIDAVIT

      I, Shojan Jacob, S/o Late V.M.Chacko, aged 29 years, residing at
Shojan Villa, Pampady P.O, Kottayam, Kerala- 686502 do hereby solemnly
affirm and state as follows:

      1.     I am the Petitioner in the above Writ Petition. I am conversant
with the facts of the case.

      2.     The averments contained in the Writ Petition are true and
correct statements. Exhibits produced along with the Writ Petition are
true copy of their respective originals.

       3.   The reliefs prayed in the Writ Petition are very essential in the
public interest. The petition is filed by the petitioner bonafide to get a
redress for a public grievance. Otherwise, irreparable loss and hardship
will be caused to the public.

   4. I have not filed earlier Petition seeking similar and identical relief on
the same subject.

     All the facts stated above are true and correct to the best of my
knowledge, information and belief.




                                                      Shojan Jacob
                                                      (Deponent)



Solemnly affirmed and signed before me by the deponent who is personally known
to me on this the 2nd day of March, 2012 in my office at Ernakulam.
Advocate :

				
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